Wednesday, May 29, 2013

Regular Use Exclusion Upheld by Erie County Court of Common Pleas

In a May 17, 2013 Opinion, in the case of Gill v. Erie Ins. Exchange, No. 12113 - 2012 (C.P. Erie Co. May 17, 2013 DiSantis, J.), Judge Ernest J. DiSantis, Jr. of the Erie County Court of Common Pleas entered summary judgment in favor of Erie Insurance Exchange based upon the application of a regular use exclusion in the policy. 

According to the opinion, at the time of her motor vehicle accident, the Plaintiff was operating one of her employer’s vehicles when it was rear ended by a tortfeasor.  The Plaintiff worked for a company that was involved of medical monitoring and that operated a self-independent living program.  As part of her job duties, the Plaintiff was required to visit clients and, at times take them to medical appointments, run errands, etc.

After collecting the liability coverage from the tortfeasor and then her employer’s automobile UIM coverage, the Plaintiff turned to her then boyfriend, now husband’s, auto policy with Erie Insurance for additional UIM coverage.  She was living with boyfriend at the time of the accident. The Plaintiff was also a listed driver in the boyfriend’s policy. 

At the time of the accident, the employer had a set policy for employees like the Plaintiff to use a company vehicle for transporting certain “consumers” or customers about the Erie, Pennsylvania  area for medical appointments and personal errands. 

The Plaintiff was using one of the employer's vehicles on the day in question and, as such, the regular use exclusion under the boyfriend/now husband's Erie Insurance policy was deemed applicable by the court.  Accordingly, the Plaintiff's motion for summary judgment on her declaratory judgment action was denied and Erie's cross motion was granted. 

In so ruling, the court cited to Superior Court precedent confirming that the regular use exclusion was not against public policy.  Also, of note with respect to this decision is the fact that the particular involved vehicle was not one that the Plaintiff regularly used appeared to be immaterial to the court in rendering its decision.

Rather, the court noted that the record before the court established that the Plaintiff had access to the employer's vehicles and would use them as the demanded by her job duties.  Under these facts the court found that the regular use exclusion applied to preclude coverage under the Erie policy.

Anyone desiring a copy of this decision may contact me at dancummins@comcast.net.

I sent thanks to Attorney William Wagner of the Erie, Pennsylvania law firm of Marnen, Mioduszewski, Bordonaro, Wagner & Sinnott, LLC for bringing this case to my attention.


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